Opinion
Rehearing Granted June 20, 1935.
Appeal from Superior Court, Los Angeles County; Robert W. Kenny, Judge.
Action by Emma R. Timm against Alice G. McCartney and others, wherein defendants demurred. From a judgment, plaintiff appeals.
Affirmed.
COUNSEL
Tanner, Odell & Taft, of Los Angeles, for appellant.
C. E. McDowell, of Los Angeles, for respondents.
OPINION
STEPHENS, Presiding Justice.
The plaintiff in the trial court appeals from a judgment awarded defendant after the court had sustained an objection to the taking of any testimony in the case upon the ground that no issue of fact was presented by the pleadings.
Appellant first contends that it was error for the trial court to entertain such a motion, since the same court in the law and motion department by another judge overruled a general demurrer to the complaint. It is our opinion that this inconvenience is a necessary result of the practice of settling the pleadings in one department and of trying the issues in another department of the same court. While there is some difference of opinion as to the advantage of this practice, it is safe to say that most lawyers and most judges of the superior court of Los Angeles county, in which there are fifty departments, believe it is superior to the practice of each judge in department settling the pleadings of cases assigned to his department. Very occasionally the law and motion department judge differs with the trial department judge, but this must be endured, as it would be quite impracticable to require the trial judge to proceed to trial of a case that to his mind presents no question of fact for trial that could result in a judgment upon the complaint.
Appellant next contends that each one of the three counts of her complaint states a cause of action, and we shall examine the complaint in the light of this issue.
A firm of realtors purchased a tract of land from the defendant-respondent, Alice G. McCartney, subdivided it into lots and sold some of them. Emma R. Timm, plaintiff and appellant, was a purchaser. An overlying incumbrance secured the purchase price of the tract to respondent, and default having occurred, she sued the lot purchasers, including appellant, to quiet her title. Appellant had fully paid for her property, but had not secured her deed. Judgment went for plaintiff in such quiet title suit, but she was required to transfer such lots to the purchasers upon the payment by the realtors or their successors of a flat sum of money within a prescribed time. The above are the essential facts established by findings and judgment in another action to which both parties hereto were parties. Both parties are bound thereby.
The case went to the Supreme Court, and before decision there [McCartney v. Campbell, 216 Cal. 715, 16 P.2d 729] the legal title to the property purchased by appellant was transferred by Mrs. McCartney (February 15, 1929) to C. E. McDowell.
It is alleged in appellant’s first cause of action that immediately upon the affirmation by the Supreme Court of the referred to action appellant demanded that respondent deliver her a deed of conveyance to the property in question, but that respondent failed, neglected, and refused to do so. That (alleged on information and belief) the payment of the money required to be paid to respondent had been paid or adjusted. That therefore appellant was damaged in the principal sum paid out for the property, and prayed judgment against respondent therefor with interest.
Assuming all of these alleged facts to be true, the title to the property transferred to McDowell was no greater than respondent’s title, and was subject to all of the equities prescribed in the judgment to which reference has been made. The property, therefore, was not beyond the reach of appellant. McCartney v. Campbell, 208 Cal. 647, 284 P. 220. It may, however, be said that appellant should not be required to pursue the title through another legal owner, although this claim is completely negatived when we consider that the judgment provided for the issuance of a commissioner’s deed should respondent, for any reason, see fit not to give one in the proper circumstances.
But even if this conclusion should be erroneous, there is no cause of action stated. There never was any privity of contract between appellant and respondent. The money to be paid respondent as the equitable condition under which the subdivider of the tract should take title from respondent had no relation to the money paid the subdivider by appellant. There was a complete lack of any facts upon which a judgment that the money paid the subdivider should be "paid back" by respondent, or that such sum should in any manner be the measure of damages from respondent to appellant. It is conceivable that should respondent have made it impracticable for appellant to have received her title after all equities had been adjusted that she could be held to answer in damages for the value of the property, but no such cause of action is attempted to be stated. The rule, of course, is different where the original contract was between the owner and the purchaser. Cohen v. A. F. A. Realty Corporation, 250 N.Y. 262, 165 N.E. 285; Jackins v. Bacon, 63 Cal.App. 463, 468, 218 P. 1027; Bonnelfillio v. Ricks, 214 Cal. 287, 4 P.2d 929.
The second cause of action alleged that the rental value of the property was $100 per month, and that, but for this litigation, she could have had such benefit since March 3, 1928, the date of the judgment herein mentioned. It is not alleged that she was kept out of possession of the property during the litigation, but aside from that the facts alleged do not disclose that she was ever entitled to the possession of the property.
The third cause of action alleges that appellant was compelled to expend and did pay to C. E. McDowell the sum of $3,500 on March 30, 1935, "to obtain title to possession" of said property, and she prays judgment against respondent therefor. The basis of such expenditure, or how or in what manner respondent is obligated in relation thereto, is entirely lacking in the complaint.
No cause of action was stated against respondent in either count of the complaint, and the trial court was correct in sustaining the objection to the receipt of any evidence. It is set up by demurrer and by answer that each cause of action is barred by the provisions of subdivision 1 of section 337 of the Code of Civil Procedure. We do not think it necessary to consider this phase of the case.
The judgment is affirmed.
I concur: CRAIL, J.